Citation Nr: 0517895
Decision Date: 06/30/05 Archive Date: 07/07/05
DOCKET NO. 02-07 115 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in New
Orleans, Louisiana
THE ISSUES
1. Whether new and material evidence has been received to
reopen the claim of entitlement to service connection for a
psychiatric disorder.
2. Entitlement to an increased rating for iliosclerosis,
right sacroiliac joint, currently evaluated as 40 percent
disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Sabrina M. Tilley, Counsel
INTRODUCTION
The veteran served on active duty from May 1967 to July 1968.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a January 2002 rating decision of the New
Orleans, Louisiana, Regional Office (RO) of the Department of
Veterans Affairs (VA).
In its current status, the case returns to the Board
following completion of development made pursuant to its
February 2004 remand.
The issue of entitlement to an increased rating for the
service-connected back disability is addressed in the REMAND
portion of the decision below an is REMANDED to the RO via
the Appeals Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. All relevant evidence necessary for a fair and informed
decision has been obtained by the originating agency.
2. Entitlement to service connection for a nervous condition
was previously denied in a July 1989 rating decision; the
veteran did not initiate a timely appeal after the RO
notified him of that determination in August 1989.
3. The veteran attempted to reopen his claim for service
connection for a psychiatric disorder in March 2001.
4. The evidence received into the record since the July 1989
rating decision consists of VA clinical records showing
ongoing evaluation and treatment for a psychiatric disability
variously classified; this evidence is not so significant
that it must be viewed with all of the evidence in order to
fairly decide the veteran's claim.
CONCLUSIONS OF LAW
1. The July 1989 rating decision that denied entitlement to
service connection for a nervous condition is final. 38
U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.1103
(2004)
2. New and material evidence has not been received to reopen
the claim of service connection for a psychiatric disability.
38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (effective
prior to August 29, 2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The RO denied entitlement to service connection for a nervous
condition in a July 1989 rating decision. The RO found that
there was no evidence of psychiatric disability in service,
that no psychiatric disability was revealed on the initial VA
examination in November 1973, and that the initial
postservice reference to hallucination that was recorded in
November 1975 was associated with alcoholic hallucinosis.
Clinical records also showed a diagnosis of schizophrenia.
When VA examined the veteran in June 1989, he was afforded
the diagnosis major depression, psychotic. The veteran was
notified of the denial of service connection by a letter
dated in August 1989, but, the veteran did not initiate a
timely appeal following this notice. The veteran attempted
to reopen his claim for service connection in March 2001.
The requirement of submitting new and material evidence to
reopen a claim is a material legal issue that the Board is
required to address on appeal. Barnett v. Brown, 83 F.3d
1380, 1383-84 (Fed. Cir. 1996); see also Jackson v. Principi,
265 F.3d 1366 (Fed. Cir. 2001).
VA law provides that despite the finality of the prior
adverse decision a claim will be reopened and the former
disposition reviewed if new and material evidence is
presented or secured with respect to a claim that has been
disallowed. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R.
§ 3.156 (effective prior to August 29, 2001).
New and material evidence means evidence not previously
submitted to agency decisionmakers which bears directly and
substantially upon the specific matter under consideration,
which is neither cumulative nor redundant, and which by
itself or in connection with evidence previously assembled is
so significant that it must be considered in order to fairly
decide the merits of the claim. 38 C.F.R. § 3.156(a)
(effective prior to August 29, 2001).
The Court has held that VA must reopen a claim when "new and
material evidence" is presented or secured with respect to a
previously and finally disallowed claim. Stanton v. Brown,
5 Vet. App. 563, 566 (1993). The standards regarding the
issue of finality have been reviewed and upheld. Reyes v.
Brown, 7 Vet. App. 113 (1994).
The United States Court of Appeals (Federal Circuit Court)
overruled a holding in Colvin v. Derwinski, 1 Vet. App. 171
(1991), which limited the reopening of previously denied
claims based upon "a reasonable possibility that the new
evidence, when viewed in the context of all the evidence,
both new and old, would change the outcome." See Hodge v.
West, 155 F. 3d 1356 (Fed. Cir. 1998).
Subsequently, the Court held that with regard to petitions to
reopen previously and finally disallowed claims VA must
conduct a three-part analysis, first, whether evidence
submitted is "new and material" under 38 C.F.R. § 3.156(a),
second, if it finds the evidence is "new and material"
immediately upon reopening it must determine whether the
claim is well grounded, based upon all of the evidence,
presuming its credibility, and third, if the claim is well
grounded to proceed to the merits, but only after ensuring
that the duty to assist had been fulfilled. Elkins v. West,
12 Vet. App. 209 (1999) (en banc). However, on November 9,
2000, the President signed into law the Veterans Claim
Assistance Act (VCAA), Pub. L. No. 106-475, 114 Stat. 2096
(2000) that eliminated the requirement of a well-grounded
claim. The Board observes that VCAA resulted in revisions to
38 C.F.R.§ 3.156; however, the effective date of these
changes in August 29, 2001. The veteran filed his current
claim to reopen in March 2001, and consequently his claim
does not come under the purview of these changes.
With respect to the issue of materiality, the Court has held
that the newly presented evidence need not be probative of
all the elements required to award the claim but that the
evidence must tend to prove the merits of the claim as to
each essential element that was a specified basis for the
last final disallowance of the claim. Evans v. Brown, 9 Vet.
App. 273, 284 (1996) (citing Caluza v. Brown, 7 Vet. App.
498, 506 (1995), aff'd 78 F.3d 604 (Fed. Cir. 1996) (table)).
The Federal Circuit Court has held that evidence that is
merely cumulative of other evidence in the record cannot be
new and material even if that evidence had not been
previously presented to the Board. Anglin v. West, 203 F.3d
1343 (2000). The Board acknowledges that for the purpose of
establishing new and material evidence, the credibility of
the new evidence is presumed. Kutscherousky, v. West, 12 Vet
App 369 (1999).
The evidence received into the record since the 1989 rating
decision consists of VA reports of evaluation and treatment
since the mid 1980s. Some of these records are new in that
they were not previously of record. They are not material,
however, as pertain to on-going evaluation and treatment for
psychiatric disability in the postservice years. A January
1988 report indicates that the veteran began having
hallucinations 1971, four years prior the 1975 date that was
considered previously, but still two years after the date of
the veteran's separation. There is no indication from the
additional evidence that the veteran's currently psychiatric
disability is related to injury, disease or event noted
during his military service. This evidence, though new is
not material as it does not contribute to a more complete
picture of the circumstances surrounding the origin of the
veteran's disability and is not so significant that it must
be viewed with all the evidence in order to fairly decide the
claim.
ORDER
New and material evidence has not been received to reopen the
claim for service connection for a psychiatric disorder.
REMAND
The veteran's most recent official examinations were
conducted in 2001. Since that time the schedule for rating
spine disabilities was revised, effective September 26, 2003.
See 68 Fed. Reg. 51454-51456 (August 27, 2003). The formula
for rating intervertebral disc syndrome was revised as well,
effective September 23, 2002. See 67 Fed. Reg. 54345-54349
(August 22, 2002). Consequently, additional examination
should be performed to evaluate fully the veteran symptoms
under these new criteria. The examination should clarify the
appropriate diagnosis, establish precise ranges of motion,
describe the duration and severity of incapacitation episodes
and evaluate functional loss. VA has an obligation to afford
claimants for disability benefits a thorough, contemporaneous
examination when necessary to evaluate a disability. See
38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) (2004).
In view of the foregoing, the veteran's case is remanded to
the RO for the following actions:
1. Afford the veteran a VA spine
examination in order to determine the
current nature and extent of service-
connected cervical spine and lumbosacral
spine disabilities. All indicated
special studies and tests should be
accomplished. The claims folder should
be made available to the examiner for use
in studying the case.
Ask the examiner to provide a complete
diagnosis and discussion on current
symptomatology associated with service-
connected low back disability.
i. With respect to the orthopedic
examination, the examiner is
requested to provide complete
information concerning the range of
motion, including flexion,
extension, lateral flexion in each
direction and rotation in each
direction.
A. The examiner should note actual
values for active, passive, as well
as values considered to be normal
ranges of motion for the veteran.
The examiner should state whether
the veteran currently has ankylosis
and if so, if such ankylosis is
favorable or unfavorable.
B. Also, the examiner is requested
to determine the degree of
intervertebral disc syndrome, if
any, associated with the veteran's
service-connected low back
disability.
The examiner is requested to comment
on the nature and severity of the
veteran's "chronic orthopedic
manifestations"-i.e., orthopedic
signs and symptoms resulting from
intervertebral disc syndrome that
are present constantly, or nearly
so.
The examiner is asked to determine
if intervertebral disc syndrome is
present in more than one spinal
segment of the lumbarsacral spine.
If so, and provided that the effects
in each spinal segment are clearly
distinct, the examiner is to address
and evaluate each segment on the
basis of its chronic orthopedic
manifestations or incapacitating
episodes.
ii. With respect to the
neurological examination: The
examiner is requested to determine
the degree of intervertebral disc
syndrome associated with service-
connected low back disability.
The examiner is asked to comment on
the nature and extent of any chronic
neurological manifestations-i.e.,
neurological signs and symptoms
resulting from intervertebral disc
syndrome that are present
constantly, or nearly so.
The examiner is asked to
distinguish, to the extent possible,
the neurological signs and symptoms
associated with the veteran's
intervertebral disc syndrome from
the orthopedic signs and symptoms.
Also, the examiner is asked to
determine if intervertebral disc
syndrome is present in more than one
segment of the lumbarsacral spine.
If so, and provided that the effects
in each spinal segment are clearly
distinct, the examiner is to address
and evaluate each segment on the
basis of its chronic neurological
manifestations or incapacitating
episodes.
iii. The examiner should also
document the number of weeks, if
any, during the past 12 months, that
the veteran has had "incapacitating
episodes," defined as a period of
acute signs and symptoms due to
intervertebral disc syndrome that
requires bed rest prescribed by a
physician and treatment by a
physician.
iv. The examiner is asked to
comment on the impact of functional
loss due to pain, weakness and other
factors on the veteran's service-
connected disability picture.
v. The examiner is asked to comment
on the impact of the service-
connected spine disability picture
on the veteran's ability to obtain
and maintain employment.
2. Thereafter, the RO should
readjudicate the claim. If the benefit
sought on appeal remains denied, the
appellant and the appellant's
representative, if any, should be
provided a supplemental statement of the
case (SSOC). The SSOC must contain
notice of all relevant actions taken on
the claim for benefits, to include a
summary of the evidence and applicable
law and regulations considered pertinent
to the issue currently on appeal. An
appropriate period of time should be
allowed for response.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38
U.S.C. §§ 5109B, 7112).
______________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs